THESE TERMS OF SERVICE (THESE “TERMS”) GOVERN SUBSCRIPTION TO AND USE OF BLUECORE’S SERVICES. IF YOU REGISTER FOR A FREE TRIAL OF BLUECORE’S SERVICES, THE APPLICABLE PROVISIONS OF THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL. BY ACCESSING OR USING BLUECORE’S WEBSITES AND SERVICES, YOU ACCEPT OR AGREE TO THESE TERMS. IF YOU ARE ENTERING INTO OR ACCEPTING THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE, THE TERM “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS OR USE BLUECORE’S SERVICES.
1. Definitions
- “BlueCore” means BlueCore Company Limited.
- “Affiliate” means with respect to a party, any entity which (i) is controlled by, (ii) controls, or (iii) is under common control with such party, where the term “control” means the ownership, directly or indirectly, of more than fifty percent (50%) of the shares entitled to vote for the election of directors.
- “User” means an employee, advisor, or agent of You or the Subscribing Organization that has been assigned a unique username-password combination to access and use the Services on Your behalf.
- “Customer Data” means any data input into, processed by, and/or stored by the Services by or for You or Your Users. Customer Data includes Customer Identification Data as well as Customer Personal Data.
- “Customer Identification Data” means the Personal Data that is provided by the Customer to BlueCore and/or a BlueCore Affiliate, as requested by BlueCore, at the time of signing up for the Services, whether through the website www.bluecore.vn or through an agreement.
- “Customer Personal Data” means the Personal Data Processed by BlueCore and/or an Affiliate on behalf of the Customer pursuant to the provision of the Services. Customer Personal Data would not, however, include the Customer Identification Data.
- “Implementation Services” means any services performed by BlueCore Data, Inc to configure and roll out the Services to You, as described in an applicable Service Order.
- “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
- “Service Order” means an order for Services mutually agreed between the parties, which incorporates these Terms by reference.
- “Site” means the BlueCore website located at www.bluecore.vn.
- “Services” or “Service” means the online and hosted services, including downloadable software applications APIs, and websites, provided by BlueCore through the Site or otherwise.
2. Eligibility
You affirm that You are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. You further represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist-supporting” country, and that You are not listed on any U.S. Government list of prohibited or restricted parties. If You are entering into these Terms on behalf of an entity, organization, or company (a “Subscribing Organization”), You represent and warrant that You have the authority to bind such Subscribing Organization and its Affiliates to these Terms and You agree to be bound by these Terms on behalf of such Subscribing Organization. In such case, “You” in these Terms means such Subscribing Organization, its Affiliates, and each User of the Subscribing Organization.
3. Accounts and Registration
To access most features of the Service, You must register for a BlueCore account (“Account”). When You register for an Account, You may be required to provide us with some information about Yourself, such as Your e-mail address or other contact information. You agree that the information You provide to us is and will be accurate and up-to-date at all times. Except for a breach of our obligations hereunder or acts by BlueCore, You are solely responsible for maintaining the confidentiality of Your Account and password and You agree to accept responsibility for all activities that occur under Your Account. If You have reason to believe that Your Account is no longer secure, then You agree to notify us as soon as possible at bluecore@bluecore.vn.
4. Payment
4.1 Invoicing and Payment
Access to the Service or to certain features of the Service may now or in the future require the payment of fees such as subscription fees (“Fees”). Fees may be set forth on our pricing page available at www.bluecore.vn or on a physical, electronic, or online Service Order, as applicable, which describes such Fees. BlueCore will charge Fees in US dollars or such other method specified in the Service Order. Except as otherwise provided herein, all Fees are non-refundable. BlueCore may add features to the Service on a going-forward basis at any time and may charge additional Fees separately for such additional features if You elect to use such features. BlueCore reserves the right to change the Fees charged for any subscription upon the renewal of such subscription and in any event not by more than the Retail Price Index from year to year. The Initial Term and any Renewal Term of such subscription shall be as set forth in the applicable Service Order. Unless a different payment method is specified otherwise in the applicable Service Order, BlueCore will invoice You in accordance with the relevant Service Order. Unless otherwise stated in the Service Order, invoiced charges are due thirty (30) days from the invoice date. If the applicable Service Order states that payment will be by credit card, You will provide BlueCore with valid and updated credit card information and You hereby authorize BlueCore to charge such credit card for all Fees due under the Service Order in accordance with the billing frequency stated on such Service Order. You are responsible for maintaining complete and accurate billing and contact information and notifying BlueCore of any changes to such information. If Your payment method fails or Your accounts are past due, (a) You agree to pay all amounts due upon demand by BlueCore, (b) BlueCore may collect fees owed using other collection mechanisms (including charging other payment methods You may have on file with BlueCore), (c) BlueCore reserves the right to either suspend or terminate Your Account or access to the Service, and/or (d) You agree to pay a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less.
4.2 Collection Fee
In the event You fail to pay overdue charges, BlueCore may refer Your account(s) to a third party for collection. You agree that if it becomes necessary for BlueCore to refer Your invoices to a third party for collection, BlueCore will charge a collection fee at the maximum percentage permitted by applicable law, but not to exceed 18%, to cover the internal collection-related costs BlueCore has incurred on such invoices through and including the date on which BlueCore refers the invoices to such third party. To the extent permitted by law, You agree to pay BlueCore any additional costs and fees BlueCore reasonably incurs to collect amounts outstanding on Your invoices. You expressly authorize, and specifically consent to allow, BlueCore and/or its outside collection agencies, outside counsel, or other agents to contact You in connection with any and all matters relating to unpaid past due charges billed by BlueCore to You. You agree that, for attempts to collect unpaid past due charges, such contact may be made to any mailing address, telephone number, cellular phone number, e-mail address, or any other electronic address that You have provided, or may in the future provide, to BlueCore. You agree and acknowledge that any e-mail address or any other electronic address that You provide to BlueCore is Your private address and is not accessible to unauthorized third parties. For attempts to collect unpaid charges, You agree that in addition to individual persons attempting to communicate directly with You, any type of contact described above may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, pre-set e-mail messages delivered by an automatic e-mailing system, or any other pre-set electronic messages delivered by any other automatic electronic messaging system.
4.3 Payment Disputes
BlueCore shall not exercise its rights under Section 3.1 (Invoicing and Payment) or 3.2 (Collection Fee) with respect to those charges that are under reasonable and good faith dispute and for which You are cooperating diligently to resolve the dispute.
5. Licenses
5.1 License from BlueCore to You
Subject to the Terms, BlueCore grants to You a worldwide, non-exclusive, non-transferable, terminable license to use the Service.
5.2 Customer Personal Data
To the extent applicable, if You input any Customer Personal Data for processing through the Services or host any application (“Customer Application”) within the Services, then You grant to BlueCore a worldwide, non-exclusive, royalty-free license, for the duration of this Agreement, to such Customer Personal Data and Customer Applications for the sole purpose of providing the Service to You in accordance with this Agreement and BlueCore’s Privacy Policy. BlueCore shall not, now or in the future, sell any Customer Personal Data to any third party. You are solely responsible for storing and maintaining backups and copies of all Customer Personal Data and Customer Applications, each of which are stored within Your applicable third-party hosting service provider (such as Amazon Web Services, Google Cloud Platform, Microsoft Azure, or such other pre-approved platform, as applicable) (the “Cloud Provider”). BlueCore is not responsible for storing any Customer Personal Data or Customer Applications and disclaims all liability in connection with any claims that the Customer Personal Data or Customer applications have been lost, deleted, corrupted, or otherwise rendered unusable. BlueCore reserves the right to immediately suspend Your use of the Services or, at any time, to remove any Customer Personal Data or Customer Applications, with concurrent notice (and provided that BlueCore shall endeavor to provide prior notice when possible or permitted), in instances where failure to immediately suspend such access or remove such Customer Personal Data or Customer Applications would violate applicable law, or cause a material and incurable harm to the rights of a third party or BlueCore.
6. Confidentiality
6.1 Definition
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or written, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include the Customer Personal Data; BlueCore’s Confidential Information shall include the Service; and Confidential Information of each party shall include the terms and conditions of these Terms and all Service Orders, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
6.2 Exclusions
However, Confidential Information (other than Customer Personal Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.3 Protection of Confidential Information
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall protect the Disclosing Party’s Confidential Information by using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with these Terms and who are bound by confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.4 Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6.5 No License
Except as expressly set forth herein, no license or other rights to Confidential Information are granted or implied hereby by either party.
7. Acceptable Use
BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
- copy, modify or distribute any portion of the Services;
- violate, or encourage others to violate, the rights of third parties;
- import or collect any Customer Data or other content that is unlawful, defamatory, libelous, or invasive of privacy through Your Customer Applications or otherwise;
- use the Service to engage in or promote any other harmful, offensive, inappropriate, fraudulent, deceptive, or illegal activities;
- sell, sublicense, rent, lease, or otherwise transfer the access granted herein to the Service or any Materials (as defined in Section 12 below) other than to Affiliates; including on a time-share or service bureau basis;
- use or apply, directly or indirectly, the Services in any manner competitive with the business of BlueCore;
- use the Services to violate the security or integrity of, or otherwise abuse, any application, computing device, system or network (each a “System”) of any party, including but not limited to accessing or using any System without permission (including attempting to probe, scan, monitor, or test the vulnerability of a System), forging any headers or other parts of any message describing its origin or routing, interfering with the proper functioning of any System (including any deliberate attempt by any means to overload a System), implementing denial-of-service attacks, operating non-permissioned network services (including open proxies, mail relays or recursive domain name servers), or using any means to bypass System usage limitations;
- attempt to gain access to any Systems or networks that connect to the Services (except as required to access the Services as provided hereunder);
- use the Services to distribute or facilitate the sending of unsolicited mass email or other messages, promotions or solicitations (e.g., “spam”), including advertising or other announcements of any kind;
- interfere with or disrupt the operation of the Service, including by (i) disassembling, decompiling, reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof, except to the extent that such activity is expressly permitted by applicable law, (ii) performing any fraudulent activity, including impersonating any person or entity, claiming false affiliations, or accessing the Service accounts of others without permission; or (iii) intentionally interfering with or damaging the operation of the Service or any user’s enjoyment of it, including by uploading or otherwise disseminating viruses or other malicious code; or
- permit or authorize a third party to do any of the foregoing.
8. Export Tools
8.1 Export Tools
BlueCore may provide tools within the Service that enable You to export information, including Customer Personal Data, either in downloadable form or directly to third party services (“Export Tools”). By using Export Tools to export to third parties services, You agree that we may transfer such information, including Customer Personal Data, to the applicable service or in the applicable format.
8.2 Export Tools Disclaimer
YOU ACKNOWLEDGE THAT EXPORT TOOLS MAY NOT WORK FOR YOUR PURPOSES, AND YOU ACKNOWLEDGE THAT INFORMATION EXPORTED USING EXPORT TOOLS (INCLUDING CUSTOMER PERSONAL DATA) MAY BE INCOMPLETE, CORRUPTED, OR OTHERWISE NOT USEABLE. The disclaimer with respect to Customer Personal Data in Section 5.3 applies to all exported Customer Personal Data.
9. Digital Millennium Copyright Act (DMCA) Policy
9.1 DMCA Notification
We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If You have any complaints or objections to material posted on the Service, You may contact our Designated Agent at the following address: BlueCore Company Limited — email: bluecore@bluecore.vn
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that You claim has been infringed;
- a description of the material that You claim is infringing and where it is located on the Service;
- Your address, telephone number, and email address;
- a statement by You that You have a good faith belief that the use of the materials on the Service of which You are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by You that the above information in Your notice is accurate and that, under penalty of perjury, You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
9.2 Repeat Infringers
BlueCore will promptly terminate without notice the accounts of users that are determined by BlueCore to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had Customer Personal Data or Customer Applications removed from the Service more than twice.
10. Term; Termination; Discontinuation and Modification of the Service
10.1 Term
These Terms commence on the Effective Date and shall continue in full force and effect until all subscriptions granted in accordance with these Terms or a Service Order have expired or been terminated. The initial term of these Terms shall commence on the start date specified in the applicable Service Order and continue for the subscription term specified therein (“Initial Term”). Except as otherwise specified in the applicable Service Order, all subscriptions shall automatically renew for an additional periods equal to the expiring subscription term unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term (the “Renewal Term”).
10.2 Termination for Cause
A party may terminate these Terms for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by You, You shall have no obligation to pay for any fees covering the remainder of the term of all subscriptions after the effective date of termination. Unless otherwise stated in the applicable Service Order, upon any termination for cause by BlueCore, You shall pay any unpaid fees covering the remainder of the term of all Service Orders after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to BlueCore for the period prior to the effective date of termination. Notwithstanding the foregoing, BlueCore reserves the right to immediately suspend or terminate Your use of the Services or remove Customer Personal Data or Customer Applications from the Service, without notice, in instances where such continued use would violate applicable law or have a material adverse effect on BlueCore.
10.3 Termination for Convenience
You may terminate these Terms at any time, for reason or no reason, upon thirty (30) days prior written notice to BlueCore. Unless otherwise set forth in an applicable Service Order, if You terminate Your Account, You shall not be entitled to any refund and shall remain obligated to pay, as liquidated damages and not as a penalty, all outstanding fees and charges, if any, not prepaid and owed relating to Your use of the Service at the time of such termination for the remainder of the Initial Term or any Renewal Term under the Service Order.
10.4 Modification of the Service
BlueCore reserves the right to make non-material modifications to the Service at any time without notice to You, provided that such changes do not materially reduce the functionality of the Services. We will have no liability whatsoever on account of any such non-material change to the Service.
10.5 Effect of Termination on Confidential Information
Upon the termination of these Terms, each Receiving Party will (a) destroy all Confidential Information of the Disclosing Party received by the Receiving Party without retaining a copy of any such material; (b) promptly deliver to the Disclosing Party all other Confidential Information of the Disclosing Party, together with all copies thereof, in the possession, custody or control of the Receiving Party or, alternatively, destroy all such Confidential Information; and (c) certify all such destruction in writing to the Disclosing Party, provided, however, that the Receiving Party may retain a list that contains general descriptions of the information it has returned or destroyed to facilitate the resolution of any controversies after the Disclosing Party’s Confidential Information is returned. In the event that Receiving Party believes that returning or destroying Confidential Information is not feasible, the Receiving Party will notify the Disclosing Party in writing of the condition that makes return or destruction infeasible. If the Disclosing Party agrees that return or destruction of the Confidential Information is infeasible, as determined in its sole discretion, the Receiving Party will extend the protection of confidentiality under section 6 to such Confidential Information and limit further disclosure of such Confidential Information for so long as the Receiving Party maintains such Confidential Information.
11. Privacy Policy; Additional Terms; Data Processing Addendum
11.1 Privacy Policy
Please read the BlueCore Privacy Policy carefully for information relating to our collection, use, and disclosure of Your personal information. The BlueCore Privacy Policy is hereby incorporated by reference into, and made a part of, these Terms.
11.2 Additional Terms
Your use of the Service is subject to any additional terms, rules, or guidelines applicable to the Service or certain features of the Service that we may post and You may accept (the “Additional Terms”), such as end-user license agreements for our downloadable applications, subject to these Terms. All such Additional Terms are hereby incorporated by reference into and made a part of, the Terms.
11.3 Data Processing Addendum
The Data Processing Addendum details BlueCore's role as the data processor and your rights as the data controller while you use the Service. By using BlueCore’s Services, you are deemed to have signed the Data Processing Addendum.
12. Ownership; Proprietary Rights
The Service is owned and operated by BlueCore. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by BlueCore (the “Materials”) are protected by all relevant intellectual property and proprietary rights and applicable laws. Except for any Customer Personal Data or Customer Applications, all Materials contained in the Service are the property of BlueCore or our third-party licensors. Except as expressly authorized by BlueCore, You may not make use of the Materials. BlueCore reserves all rights to the Materials not expressly granted in these Terms. You retain copyright and any other proprietary rights You hold in the Customer Personal Data and Applications that You import to the Service.
13. Indemnity
13.1 Indemnification by BlueCore
BlueCore shall defend, indemnify and hold You, and Your respective officers, directors, employees, consultants, affiliates, subsidiaries and agents (“Customer Indemnitees”) harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against any Customer Indemnitee by a third party alleging that the use of the Service as contemplated hereunder infringes the patent, copyright, trade secret or intellectual property or proprietary rights of such third party, provided that You (a) give written notice of the Claim to BlueCore; (b) give BlueCore control of the defense and settlement of the Claim (provided that BlueCore may not settle any Claim unless it unconditionally releases You of all liability); and (c) provide to BlueCore, at BlueCore’s cost, all reasonable assistance. BlueCore may, at its expense: (i) procure for You the right to continue using the Service under the terms of these Terms; (ii) replace or modify the Service to be non-infringing without a material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the license for the infringing Service and relieve You of any obligation to pay fees for the remainder of the term following the effective date of termination.
13.2 Indemnification by You
You agree that You are responsible for Your use of the Service, and You agree to defend, indemnify and hold harmless BlueCore and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “BlueCore Entities”) from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way connected with (i) Your or Your Users’ access to, use of or alleged use of the Service in violation of Section 6 (Acceptable Use), (ii) Your violation of the Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation, (iii) Your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right, or (iv) any disputes or issues between You and any third party; provided that BlueCore (a) gives written notice of the Claim to You, (b) gives You control of the defense and settlement of the Claim (provided that You may not settle any Claim unless it unconditionally releases BlueCore of all liability), and (c) provides to You, at Your cost, all reasonable assistance. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with our defense of such claim.
14. Warranty; Disclaimers
14.1 Service Warranty
BlueCore warrants that the Services will substantially conform to the functionality set forth herein.
14.2 Customer Personal Data Warranty
By importing, storing, or processing Customer Personal Data or making available Customer Applications, You affirm, represent, and warrant that:
- You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize BlueCore and users of the Service to use and distribute Your Customer Personal Data and Customer Applications as necessary to exercise the licenses granted by You in these Terms including, but not limited to, Your applicable license agreement with the applicable Cloud Provider;
- Your Customer Personal Data and Customer Applications, and the use thereof as contemplated herein, does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.
14.3 Use Disclaimer
Customer assumes sole responsibility and liability for its use and its Users’ use of the Services. BlueCore shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to BlueCore by You in connection with the Services or any actions taken by BlueCore at Your direction. BlueCore shall have no liability for any claims, losses or damages arising out of or in connection with Your or any User’s use of any material, information or results available through any third-party products, services, software or websites that are accessed from within the Services. The Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
14.4 Customer Personal Data and Customer Application Disclaimer
Except as otherwise set forth herein, BlueCore expressly disclaims any and all liability in connection with Customer Personal Data or Customer Applications. BlueCore is under no obligation to edit or control Customer Personal Data or Customer Applications that You import to or make available through the Services. BlueCore may, at any time without prior notice, remove any Customer Personal Data or Customer Applications that violate these Terms or applicable law, or which violate the rights of a third party or BlueCore.
14.5 General Disclaimer
EXCEPT AS PROVIDED IN SECTION 14.1, THE SERVICE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 14.1, THE BLUECORE ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE-OF-DEALING, USAGE, OR TRADE. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE.
14.6 No Sensitive Use
You acknowledge that the Services are not designed, intended, or authorized to process sensitive information or data, including, but not limited to, protected health information as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), or other sensitive data of You, a User, or a third party (collectively “Sensitive Information”). You shall not use the Services for such purposes or under such circumstances or to process or store Sensitive Information. BlueCore is not aware of, and has no method of detecting whether or not any Customer Personal Data constitutes Sensitive Information. BLUECORE EXPRESSLY DISCLAIMS ANY LIABILITY IN CONNECTION WITH ITS ACCESS TO, STORAGE OF, OR PROCESSING OF ANY SENSITIVE INFORMATION. You shall indemnify BlueCore for any claims arising from Your breach of this Section 15.6.
NOT ALL JURISDICTIONS ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. THEREFORE SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
15. Limitation of Liability
IN NO EVENT WILL BLUECORE ENTITIES BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE BLUECORE ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE BLUECORE ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THE USE OF THE SERVICE IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO BLUECORE FOR ACCESS TO AND USE OF THE SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR LIMITATION OF LIABILITY SET FORTH IN THESE TERMS IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
16. Governing Law
These Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, You and BlueCore agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating all such disputes. We operate the Service from our offices in California, and we make no representations that information and materials included in the Service are appropriate or available for use in other locations.
17. General
17.1 Entire Agreement
The Terms, together with the Privacy Policy, Data Processing Addendum, the Additional Terms, the Service Order, and any other agreements expressly incorporated by reference herein, as applicable, constitute the entire and exclusive understanding and agreement between You and BlueCore regarding Your use of and access to the Service. The Data Processing Addendum details BlueCore's role as the data processor and your rights as the data controller while you use the Service.
17.2 Assignment
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign these Terms in their entirety (including all Service Orders), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
17.3 Metadata
BlueCore may collect aggregate data about Your use of the Services that is non-personally identifiable with respect to You or any User or individual (“Aggregated Anonymous Data”), and may use and disclose the Aggregated Anonymous Data for the purpose of enhancing the Services and otherwise for any internal business purpose.
17.4 No Waiver
The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of the Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
17.5 Headings
Use of paragraph headers in the Terms is for convenience only and shall not have any impact on the interpretation of particular provisions.
17.6 Severability
In the event that any part of the Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
17.7 Survival
Upon termination of the Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to Sections 1, 3, and 5 through 17.
17.8 Notices
Any notices provided by BlueCore under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices by e-mail, the date of receipt will be the date on which such notice is transmitted.
17.9 Force Majeure
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes (except by its own employees), shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
17.10 Compliance with Laws
Each party agrees to comply with all applicable laws, including U.S. export laws, and regulations with respect to its activities hereunder.
17.11 Relationship Between the Parties
Nothing in these Terms shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
17.12 Feedback
If You or Your Users submit suggestions, ideas, comments, questions, or post any information through the Services (“Feedback”), You grant BlueCore and its Affiliates a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable right to use (and full right to sublicense), reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, and display such Feedback in any form.
17.13 Changes
BlueCore reserves the right to, without materially affecting the functionality of the Services: (1) discontinue, impose limits on, or restrict access to any aspect of the Services at any time, with or without cause or notice, including the availability of any features, delivery services, databases, or content, or (2) edit or delete any Materials.
17.14 Updates to Service
BlueCore may develop and provide updates, upgrades, enhancements, bug fixes, and workarounds for the Service on a regular basis (“Updates”). Updates are deemed to be a part of the Service and are included at no additional charge.
17.15 Equitable Relief
Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of these Terms may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
17.16 No Third-Party Beneficiaries
These Terms are for the sole benefit of the signatories and are not intended to benefit any third party.